The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My chapter (earlier version available here)in Nicholas Aroney and John Kincaid's new book Courts in Federal Countries: Federalists or Unitarists focuses on the role of judicial review in American federalism. I argue that the US Supreme Court has at times constrained both the states and the federal government. But, overall, it has done more to constrain the states than the federal government, especially since the New Deal revolution in federalism jurisprudence in the 1930s. Here's a summary of the chapter:
The relative scope of federal and state power under the U.S. Constitution has been a major bone of contention for over 200 years. Courts have sometimes enforced substantial limits on federal authority by striking down federal laws deemed to be outside the scope of Congress' enumerated powers under Article I of the Constitution. Very often, the judiciary has also constrained state power by invalidating state laws as violations of constitutional rights.
While judicial review has therefore promoted both centralization and state autonomy at different times, on balance it has strengthened the former at the expense of the latter. This pattern has been especially prevalent since the 1930s, as the Supreme Court largely abandoned earlier efforts to police limits on congressional power, while simultaneously enforcing a growing array of individual rights against state and local governments.
This chapter examines the impact of judicial review on American federalism without attempting a normative judgment. It briefly outlines the structure of American federalism and judicial review, and then describes the history of judicial review of structural limits on federal power. In the nineteenth and early twentieth centuries, the Supreme Court engaged in limited, but significant efforts to constrain congressional power. These efforts were to a large extent abandoned after the constitutional revolution of the New Deal period in the 1930s. The Supreme Court has recently attempted to revive judicial enforcement of limits on federal power. But so far these efforts have had only a limited effect. The chapter then summarizes the history of judicial review of state laws. The range of issues on which federal courts have invalidated state laws is extremely broad. Overall, the impact of these rulings in curbing state autonomy significantly exceeds the effects of the courts' more limited efforts to constrain federal power.
The last part of the chapter briefly explains why the latter result was not accidental. Because federal judges are appointed by the president and confirmed by the Senate, the chance that they will resist the political agenda of the dominant political coalition in the federal government is reduced. Even when federal judges do want to invalidate federal legislation, they may hesitate to do so when the result might create a political confrontation that the courts are likely to lose. Federal judges face fewer political risks when they strike down state legislation.
The chapter is empirical, not normative. Still, if my empirical analysis is correct, it is fair to ask whether there is a tension between my strong support for decentralized federalism, and my support for robust judicial review. History suggests that American states and localities might have greater autonomy if judicial review by federal courts were eliminated or at least significantly curtailed.
The seeming contradiction between these two commitments can be reconciled because of the fact that most judicially enforced constraints on state power take the form of enforcing individual rights rather than expanding the regulatory power of Congress or the president. As I discuss in the chapter, and more fully in this article, in many situations the ultimate decentralization is empowering individual choice in the private sector:
[J]udicial protection of individual rights against state governments… promote[s] decentralization in another important sense; it devolves more decision-making power to individual citizens and private organizations, which often means an even greater extent of decentralization than would regulation by state and local governments. If, for example, federal courts prevent state governments from censoring speech, regulating religion, restricting marriage rights, or overriding private property rights, power over these aspects of society is transferred to a lower, more decentralized level than the state government or even a local one. As a result, individual citizens are now more free to speak as they wish, use their property as they see fit, or marry the partner of their choice.
I do not value federalism for the sake of the states, but because it serves as a check on the concentration of political power (particularly important in a highly diverse society like our own), and a mechanism for enabling citizens to vote with their feet. Decentralization of power all the way down to individual citizens can often serve these purposes even more effectively than decentralization to the state. I do not claim that we should always strive for the maximum possible limitation on federal power, or the strongest possible protection for individual liberty. But there is, I think, great value in protecting both to a far greater degree than the legislative and executive branches of government are likely to do on their own.
From this standpoint, American judicial review, has been a net plus, despite its very real and significant shortcomings. In its absence, the federal government would today have somewhat greater power over the states, and both federal and state authorities would probably have substantially greater power to restrict the freedom of individual citizens. While I lament the breakdown of judicial enforcement of structural constraints on federal power during the New Deal era and its aftermath, there has been a modest, but notable revival in recent years, one that could potentially gather additional momentum.
Obviously, those with different normative commitments might also have a different bottom line evaluation of the role of judicial review in American federalism. Some liberals who want strong protection for certain individual rights, but also broad federal power over economic and social issues prefer to eliminate judicial review of federalism, but strengthen it for individual rights (at least "noneconomic" ones). Some conservatives might prefer the exact opposite arrangement—strong judicial review of federalism, combined with relatively weak judicial enforcement of individual rights.
Although I believe American judicial review has, on balance, done a great deal of good, I am far from concluding that our arrangements are optimal. For example, history suggests that anti-Federalist critics of the Constitution may well have been right to argue that the selection of federal judges by the president, subject to confirmation by the Senate, creates a bias in favor of federal power. We might have more effective judicial enforcement of federalism if at least some federal judges were selected by state governments, or by a combination of federal and state decision-makers.
Given the extreme difficulty of amending the US Constitution, we are probably stuck with the current method of judicial selection, at least for a long time to come. But other federations can still learn from our experience and potentially experiment with alternative methods of judicial selection that give a greater role to subnational governments.